The NSA has stopped scooping communications American citizens’ have with foreign surveillance targets, The New York Times reports.
The same process reportedly caught Michael Flynn, former national security adviser to President Donald Trump, discussing sanctions with a Russian official, which he originally lied about. The practice is authorized through the Foreign Intelligence Surveillance Act (FISA) — and the amendments mandated thereafter — specifically Section 702 of the bill.
After the fallout that ensued from Flynn’s somewhat disgraced departure and other leaks from the Trump administration, Republican congressmen started questioning the validity of FISA, which is set to expire at the end of the year.
Internet companies, which comply with official warrants for specific people’s data, often bundle the messages into one unit, meaning certain amounts of personal information unrelated to the subject of surveillance are sometimes collected.
Opponents of the practice are concerned that such a loose targeting of information gathering violates people’s privacy, specifically the Fourth Amendment, which explicitly forbids unreasonable searches.
“The content of our emails and texts contains incredibly personal information about our work, our families, and our most intimate thoughts,” Michelle Richardson of the Center for Democracy Technology, a nonprofit, said in a statement.
“The NSA should never have been vacuuming up all of these communications, many of which involved Americans, without a warrant. While we welcome the voluntary stopping of this practice, it’s clear that Section 702 must be reformed so that the government cannot collect this information in the future.”
Government authorities assert that it is a reasonable search and it is almost impossible to not spy on U.S. citizens when they are in contact with people abroad. They say any collateral collection of data is necessary in criminal investigations, including pursuits of terrorists and foreign spies. Proponents also argue that it is a legitimate red flag if the American knows the phone number or email address of the foreign suspect.
Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, told media that it’s hard to authorize section 702 of FISA without authorizing the collection of communications from Americans.
He provides a telling example of a hypothetical email address like [email protected] in which it does’t explicitly show if Mahmoud, who may be conversing with nefarious Yemeni nationals, is an American or not.
Baker asserts that if the NSA knew that Mahmoud was an American, it would “usually ‘mask’” his email address with some label like “USPerson No. 1 email address.”
“Section 702 is an effective program that can’t really work if we try to exclude American’s communications,” Baker continued, adding that the “‘unmasking’ provisions could be tightened up” and “they were effectively loosened as part of the sharing imperative arising from 9/11.”
Microsoft went to court over a very similar issue after the U.S. Department of Justice (DOJ) demanded access to information, like texts and emails, of a Microsoft customer due to an ongoing narcotics case.
Judge Susan Carney said in July that while Microsoft is based in the state of Washington, the emails were stored on a server in Dublin, Ireland, rendering them not subject to U.S. law, namely the federal Stored Communications Act of 1986.
The 2nd U.S. Circuit Court of Appeals in Manhattan voted 4-4 Tuesday, upholding the July decision by a three-judge panel and validating civil liberties concerns about possible privacy violations, according to Reuters.
“The panel majority’s decision does not serve any serious, legitimate, or substantial privacy interest,” Judge Jose Cabranes wrote in dissent. “It has substantially burdened the government’s legitimate law enforcement efforts; created a roadmap for the facilitation of criminal activity; and impeded programs to protect the national security of the United States and its allies,” Cabranes continued, according to Reuters, while adding that there is still a chance that a higher court would overrule the decision.